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November 28, 2008

Depositions: Getting documents with F.R.E. 612.

"So, Mr. Bloor, just before coming in here today, what did you read, or even just skim?" Often the best documents--and certainly often the most interesting ones--are documents that are not produced before or during a deposition, like handwritten records that even opposing counsel doesn't know about. F.R.E. 612 provides that if a witness uses a writing "to refresh memory", either while or before testifying, the adverse party is "entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness" on the document. Even great lawyers overlook that F.R.E. 612 applies to

(...oh goodness, I can't believe he actually read those notes this morning...this is getting good...)

depositions as well as to trials. Federal decisions have applied the rule to depositions based upon Fed.R.Civ.P. 30(c). So ask the deponent if he or she looked at documents before the deposition other than those being produced at or in advance of the deposition. If the answer is "yes", request that they be produced. You can have them produced during or after the deposition.